Recently, MillerCoors, LLC filed a lawsuit against Anheuser-Busch Companies, LLC for false advertising on one of the world’s largest stages, Super Bowl LIII.
Expanding upon its widely-popular “Dilly Dilly” advertisement campaign, Anheuser-Busch unveiled its “brewed with no corn syrup” advertisements during this year’s Super Bowl. The advertisements trolled MillerCoors for “making” and “brewing” its Miller Lite and Coors Light products with corn syrup, and promoted Bud Light as using “100% less corn syrup than Coors Light/Miller Lite.”
Unlike some of the 100 million viewers of Super Bowl LIII, MillerCoors was not amused by Anheuser-Busch’s corn syrup advertisements; MillerCoors has since challenged the veracity of Anheuser-Busch’s advertisements, seeking a Wisconsin federal court to award MillerCoors millions of dollars in damages for dilution of its trademarks, and order Anheuser-Busch to stop disseminating its corn syrup advertisements and issue corrective advertisements.
Although MillerCoors admits using corn syrup in Miller Lite’s and Coors Light’s fermentation processes, MillerCoors contends “there is no corn syrup (or HFCS) in the final glass, can, or bottle of Miller Lite or Coors Light that consumers ultimately drink.” Consequently, MillerCoors alleges that Anheuser-Busch’s advertisements confuse and deceive consumers into falsely believing corn syrup is present in the final product of Miller Lite and Coors Light. MillerCoors finds Anheuser-Busch’s advertisements particularly harmful to its brand because “consumers have become increasingly health-conscious in recent years, and negatively associate corn syrup … with adverse health effects and an unhealthy lifestyle.”
Anheuser-Busch retorts that its advertisements are true, and MillerCoors has failed to allege that Anheuser-Busch’s advertisements have misled or will mislead a substantial portion of the advertisements’ audience.
Despite the case being in the early stages of litigation, the court will determine whether MillerCoors’ lawsuit has a likelihood of success when it rules on MillerCoors’ Motion for a Preliminary Injunction. A court’s ruling on a motion for preliminary injunction is important because it affects how the parties evaluate their legal positions and, in turn, their resolve to continue litigating.
The case between MillerCoors and Anheuser-Busch demonstrates that advertisements comparing the advertiser’s products or services to its competitors’ need not incorporate false statements to be actionable. Under the Lanham Act, trademark owners may file lawsuits for harmful comparative advertising that incorporates statements that are literally false, or literally true but misleading. The major difference between the two types of claims is what a plaintiff must prove: in Lanham Act claims based upon literally false advertising, plaintiffs do not need to prove that the defendant’s advertisement caused actual consumer confusion; whereas in Lanham Act claims based upon true but misleading advertising, a plaintiff must prove that the defendant’s advertisement caused or will cause actual consumer confusion. Depending on the case, this difference can make or break the viability of a potential lawsuit.